Shrinking the Space for Denial The Impact of the ICTY in Serbia Diane F. Orentlicher Shrinking the Space for Denial The Impact of the ICTY in Serbia . Shrinking the Space for Denial The Impact of the ICTY in Serbia by Diane F. Orentlicher Open Society Justice Initiative May 2008 OPEN SOCIETY INSTITUTE NEW YORK Copyright © 2008 by the Open Society Institute and Diane F. Orentlicher. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means without the prior permission of the publisher. ISBN: 978-1-891385-84-1 Published by Open Society Institute 400 West 59th Street New York, NY 10019 USA www.soros.org For more information contact: Open Society Justice Initiative 400 West 59th Street New York, NY 10019 USA www.justiceinitiative.org Cover photos: Slobodan Milosˇevic´: Jerry Lampen l AFP l Getty Images ICTY Building: Michel Porro l Getty Images Radovan Karadzˇic´: Serge Ligtenberg l Getty Images Cover designed by Jeanne Criscola l Criscola Design Text layout and printing by Judit Kovács l Createch Ltd. Author’s Note by Diane Orentlicher Shortly after this report was released, Serbia’s relationship with the International Criminal Tribunal for the former Yugoslavia (ICTY) achieved a milestone: On July 21, 2008, Serbian authorities announced that they had arrested wartime Bosnian Serb leader Radovan Karadžic´, who had been living under an assumed identity in suburban Belgrade.1 Along with Ratko Mladic´, who is believed still to be hiding in Serbia, Karadžic´ was twice indicted on genocide and other grave charges in 19952—and along with Mladic´, had been a fugitive from justice for thirteen years. The fundamental fact of Karadžic´’s impunity had persisted for so long that those who had tirelessly sought his arrest were “in shock” when it finally happened.3 As news of the cap- ture emerged, Bosnians told a colleague in Belgrade that “they cannot and dare not believe” what they heard.4 What had long seemed unthinkable soon became historic fact: Radovan Karadžic´ was transferred to the Netherlands on July 30, 2008,5 and made an initial court appearance before the ICTY the next day.6 It was no coincidence that Karadžic´ was captured less than two weeks after a new government took office in Belgrade—the leading party’s commitment to Serbia’s entry into 5 the European Union (EU) is widely believed to have provided a crucial margin of victory in parliamentary elections two months earlier—or that his arrest followed the replacement of the longtime head of Serbia’s security services with someone committed to the new government’s pro-Europe platform. Understanding that the path to EU membership requires full coopera- tion with the ICTY, Serbia took a major step toward fulfilling its outstanding obligations to the Tribunal.7 If Serbia’s changing political landscape provided the necessary context for Karadžic´’s capture, the manner in which his arrest transpired disclosed deeper changes in Serbia’s response to the ICTY, now in existence fifteen years. Notably, upon his arrest Karadžic´ was brought before Serbia’s War Crimes Chamber (WCC)—which began operating less than five years ago and which, as this report chronicles, in myriad ways represents one of the most tangible legacies of the ICTY in Serbia.8 The arrest was announced by Serbia’s War Crimes Prosecutor, who—as described in this report and dramatically illustrated by the Karadžic´ cap- ture—has developed a professional partnership with his counterparts in The Hague. And in accordance with Serbian law, the WCC ruled that Karadžic´ could be transferred to the ICTY. That a Serbian court cleared the legal path for Karadžic´’s transfer to the ICTY stood in sharp contrast to the circumstances surrounding the transfer of former Serbian president Slobodan Miloševic´ to The Hague seven years earlier. Then Prime Minister Zoran Djindjic´ abruptly removed Miloševic´ from Serbia in defiance of the country’s constitutional court and in the face of then President Vojislav Koštunica’s strong opposition.9 This time, the arrest of a notorious fugitive took place through, not in defiance of, Serbian judicial process, high- lighting significant if incomplete progress in Serbia’s capacity to reckon legally with Serbian war crimes. Announcing the arrest in The Hague, ICTY Prosecutor Serge Brammertz said: “This is a very important day for the victims who have waited for this arrest for over a decade. It is also an important day for international justice because it clearly demonstrates that nobody is beyond the reach of the law and that sooner or later all fugitives will be brought to justice.”10 Notably, too, Brammertz hailed the achievement of the ICTY’s “colleagues in Belgrade,” including Serbia’s own War Crimes Prosecutor. 6 AUTHOR’S NOTE Table of Contents Author’s Note 5 Foreword 9 I. Introduction and Summary 11 II. Serbia’s Relationship with the ICTY 25 A. Introduction 25 B. Overview of Serbia’s Relationship with the ICTY 27 III. Benchmarks for Successful Impact in Serbia 37 A. Ensuring Prosecution of Atrocious Crimes; Dispelling Impunity 38 B. Addressing the Past 40 C. Reconciliation 41 D. Removing Criminals from the Region 41 E. Strengthening the Rule of Law by Enhancing Local Justice in War Crimes Cases 42 7 IV. Strengthening the Rule of Law by Enhancing Local Justice in War Crimes Cases 45 A. Establishment of the War Crimes Chamber 45 1. The ICTY’s Role in the Establishment of the WCC 46 2. The ICTY’s Impact on the Operation of the WCC 48 a) Transfer of Evidence 48 b) Transfer of “Know How” 50 B. Assessing the WCC 52 V. Addressing the Past 59 A. Acknowledging—and Denying—Crimes Committed by Serbs 60 B. Factors that May Partially Explain Survey Results 61 VI. Performance-Related Factors 65 A. Outreach 65 B. Interaction between the ICTY Prosecutor and Serbian Authorities 68 C. Other Performance-Related Factors that Affect the ICTY’s Impact 70 1. Videos: “A Wall of Denial ... Began to Crack” 71 2. The Trial of Slobodan Milosˇevic´ 72 a) Expectations 73 b) Unanticipated Effects 73 (i) The trial had a “clumsy start” 73 (ii) Rhetoric that resonates 75 (iii) “His ideology was in the indictment” 76 (iv) Mediating the message of the Milosˇevic´ trial 78 c) “Then you had this tragic ending” 79 D. Perceived Imbalance in the ICTY’s Indictments and Sentences 81 1. Oric´ Verdict; Other Sentences Imposed on Non-Serb Defendants 82 2. Haradinaj Case 83 E. Lengthy Pre-Trial Detention and Trials 85 F. Concluding Observations 87 Acknowledgments 89 Notes 91 8 THE IMPACT OF THE ICTY IN SERBIA Foreword by Aryeh Neier In the fifteen years since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), the movement to do justice internationally after terrible crimes has made great advances. The only other period in which there were comparable advances was in the immediate aftermath of the unprecedented crimes of World War II. Those atrocities led to the formation of international criminal tribunals at Nuremberg and Tokyo, development of the concept of crimes against humanity, and adoption of the Genocide Convention of 1948 and the Geneva Conventions of 1949. In that era, however, progress soon came to a halt because of the onset of the Cold War. In our time, it seems possible that the advances of the past fifteen years will continue in the years ahead. If that happens, the first half of the twenty first century may not be so blood-drenched as the awful last half of the twentieth century. Up to now, however, the actual information available to us on the impact of international justice has been scant. We know that more than 250 individuals from some ten countries, most of them high-ranking, have been indicted by the various international criminal tribu- nals. A significant majority have been apprehended and tried, and a large number have been convicted and are now serving prison sentences. We also know that national justice systems have been affected by the development of international justice, both in their incorporation of advances in international criminal law and in their readiness to hold accountable high officials 9 who .fall within their jurisdiction and who are accused of committing heinous crimes. In many instances, former officials who long enjoyed impunity have recently been brought to justice, or are now being brought to justice, before national tribunals. This is a remarkable, though as yet little noted, consequence of the development of international justice. What has been lacking up to now, however, is systematic information and analysis of the effects of international justice in a country that has been the focus of attempts to hold accountable those responsible for war crimes, crimes against humanity, and genocide. How is the effort to do justice seen in that country? What has changed as a consequence of that effort? What are its strengths and what are its shortcomings? These are questions that are addressed in Diane Orentlicher’s careful and penetrating study of the impact of the International Criminal Tribunal for the former Yugoslavia in Serbia. Orentlicher has been a leading scholar and practitioner in the field of international justice since the establishment of the ICTY fifteen years ago and, indeed, was one of those whose ear- lier thinking and writing about accountability for past abuses formed part of the background for the establishment of the ICTY. The Open Society Justice Initiative is pleased to have the opportunity to sponsor Orentlicher’s research and to publish this ground-breaking study that is a product of that research. Aryeh Neier President, Open Society Institute Chairman, Open Society Justice Initiative April 28, 2008 10 FOREWORD I.